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July 14, 2020 Lauren Alder Reid Assistant Director, Office Of July 14, 2020 Lauren Alder Reid Assistant Director, Office of Policy Executive Office for Immigration Review 5107 Leesburg Pike, Suite 1800 Falls Church, VA 22041 Re: RIN 1125-AA94 / EOIR Docket No.18-0002 Dear Assistant Director Reid, This collaborative comment is respectfully submitted by the Rocky Mountain Immigrant Advocacy Network (“RMIAN”); Professor Megan Hall of the University of Colorado Law School and former Managing Attorney of the Detention Program at RMIAN from 2014-2016; Professor Tania Valdez, Clinical Teaching Fellow in the Immigration Law & Policy Clinic at the University of Denver Sturm College of Law (“Denver Law”); Adjunct Professor Laura Lunn, Asylum Law & Policy Practicum at Denver Law; and Denver Law students Carly Hamilton, Scott C. Hammersley, Lauren Y. Jones, Becca Laughlin, and Mary Snover. We write to express our deep concerns regarding the Department of Homeland Security’s Notice of proposed rulemaking – Procedures for Asylum and Withholding of Removal, Credible Fear and Reasonable Fear Review, published on June 15, 2020. To be clear, this comment will address only some of the sweeping and comprehensive changes to asylum law contained in the proposed regulations. Our failure to comment on all of the proposed changes is not indicative of agreement with those provisions on which we do not comment. RMIAN is a nonprofit organization founded in 2000 that serves low-income men, women, and children in immigration matters. RMIAN promotes knowledge of legal rights, provides effective representation to ensure due process, works to improve detention conditions, and promotes a more humane immigration system, including alternatives to detention. In 2019, RMIAN served over 1,000 asylum seekers—individuals in ICE detention in Aurora, Colorado, as well as children and families across the state. RMIAN has successfully represented asylum- seekers in affirmative applications before U.S. Citizenship and Immigration Services—including many unaccompanied children—and in defensive applications before the Executive Office for Immigration Review, both in detained and non-detained courts, as well as with the Board of Immigration Appeals (“BIA”), the District Court for the District of Colorado, and Tenth Circuit Court of Appeals. We also rely on a large network of pro bono attorneys, most of whom are not immigration lawyers, to provide representation to asylum-seekers from the credible and reasonable fear process, to bond and parole, to merits and appeals. RMIAN believes that justice for immigrants means justice for all and we are committed to supporting asylum seekers and the integrity and preservation of the asylum process. All stories and quotes from RMIAN clients included in these comments are from actual clients represented by RMIAN in-house and pro- bono attorneys. Page 2 of 53 Professor Megan Hall submits this comment in her personal capacity. Professor Hall teaches legal writing and co-teaches Refugee and Asylum Law. Professor Hall became an immigration lawyer upon graduating from CU Law in 2005 and was one of the first staff members at the Rocky Mountain Immigrant Advocacy Network. During 10 years of law practice both at RMIAN and at small firms, Professor Hall worked with hundreds of people seeking humanitarian relief, including unaccompanied minors and detained adults in reasonable and credible fear proceedings. Professor Tania Valdez submits this comment in her personal capacity. In her current position, as well as her prior experience as an immigration attorney, Professor Valdez has represented affirmative asylum seekers filing before the USCIS asylum office as well as individuals who are filing defensive asylum applications in immigration court. She also represents immigrant clients before the District Court for the District of Colorado, BIA, and the Tenth Circuit Court of Appeals. Many of Professor Valdez’ clients have been asylum seekers, all of whom are survivors of torture or other trauma seeking protection in the United States. Professor Valdez supervised the five Denver Law students, who also provide this comment in their personal capacities, in the research and writing of portions of this comment. Professor Laura Lunn submits this comment in her personal capacity. She is an adjunct professor of law at Denver Law and teaches an Asylum Law & Policy Practicum, where students learn how to assess claims; evaluate the strength of asylum, withholding of removal, and CAT cases; and compile evidence/testimony in support of fear-based claims seeking immigration relief. Moreover, Professor Lunn, along with Ashley Harrington, support this comment in their professional capacities as the Managing Attorneys for RMIAN’s Detention and Children’s Programs, respectively. We Strongly Object to the Agencies Only Allowing 30 Days to Respond to Comment on the Notice of Proposed Rulemaking (“NPRM”) As thoroughly described in this comment, the proposed regulations, if implemented, will completely eviscerate asylum protections. These changes are the most sweeping changes to asylum since the 1996 overhaul of the Immigration and Nationality Act, the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”). The NPRM is over 160 pages long with 63 of those pages being the proposed rules themselves—dense, technical language which has the power to send the most vulnerable back to their countries where they may face persecution, torture, or death. Any one of the sections of these regulations, standing alone, would merit 60 days for the public to fully absorb the magnitude of the proposed changes, perform research on the existing rule and its interpretation, and respond thoughtfully. Instead, we have only 30 days to respond to multiple, unrelated changes to the asylum rules, issued as a single, mammoth document. Under any circumstances, it would be wrong for the government to give such a short time period to comment on changes that are this extensive, but the challenges to respond to this notice of proposed rulemaking now are magnified by the ongoing COVID-19 pandemic. If given more time, we have additional thoughts and objections to share on the remaining provisions not covered by this comment. Page 3 of 53 Absolutely no urgency exists for the rapid process surrounding these proposed regulations – few asylum interviews are even occurring, and our borders are currently effectively closed, thanks to the March 20, 2020 CDC order,1 to asylum seekers coming from outside the United States. The agencies’ focus on these regulations as a priority reflect the racial animus against Central Americans specifically, but also asylum seekers of color more broadly, and not any urgent need for administrative action. I. Proposed 8 C.F.R. § 208.30 and 8 C.F.R. § 1208.30: Raising the standard of proof in credible fear proceedings is unlawful and will put bona fide asylum seekers at grave risk of erroneous removal to countries where they have a well-founded fear of persecution. Raising the standard of proof in credible fear proceedings is unlawful and will put bona fide asylum seekers at grave risk of erroneous removal to countries where they have a well- founded fear of persecution. A. The proposed “bifurcated system,” which mandates different screening standards for asylum as opposed to withholding and CAT, is inconsistent with the law and is unworkable. Requiring asylum officers to navigate an exceptionally confusing “bifurcated” standard of proof in credible fear proceedings is not only unlawful, but it also sets both asylum officers and asylum-seekers up for failure. The proposed regulatory changes reflect a fundamental misunderstanding of how credible fear screenings, and asylum hearings, actually operate. The proposed rule imposes a “bifurcated screening process” in which noncitizens will be screened for asylum under a “significant possibility” standard and screened for statutory withholding or CAT protection under a heightened “reasonable possibility” standard.2 The rule contemplates that noncitizens “expressing a fear of persecution” will be screened for asylum under a “significant possibility” standard and that noncitizens instead seeking withholding or CAT will be screened under the higher “reasonable possibility” standard.3 Yet determining whether a noncitizen qualifies for asylum is, of course, not as simple as asking the noncitizen whether she wants asylum. An asylum-seeker does not approach a U.S. official and say, “I have fear of persecution, and I would like to apply for asylum rather than statutory withholding of removal or for protection under the Convention Against Torture.” 1 See Centers for Disease Control and Prevention, Interim Final Rule: Control of Communicable Diseases: Foreign Quarantine; Suspension of Introduction of Persons Into United States From Designated Foreign Countries or Places for Public Health Purposes (Mar. 20, 2020, extended on April 20, and May 19, 2020), https://www.cdc.gov/quarantine/order-suspending-introduction-certain-persons.html; see also Nick Miroff, Under Trump Border Rules, U.S. has Granted Refuge to Just Two People since Late March, Records Show, Washington Post, (May 13, 2020) https://www.washingtonpost.com/immigration/border-refuge-trump- records/2020/05/13/93ea9ed6-951c-11ea-8107-acde2f7a8d6e_story.html. 2 Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 36264, 36270 (proposed June 15, 2020) (to be codified at 8 C.F.R. pts. 208, 235, 1003, 1208, and 1235) (hereinafter “Proposed Rule”). 3 Id. at 36269. Page 4 of 53 Rather, the noncitizen simply expresses a fear of return, and from there, the screening interview is designed to determine whether the noncitizen may be able to establish eligibility for either asylum or for a “fallback” option such as withholding or CAT. The Immigration and Nationality Act itself reflects this unitary approach, providing that “the term ‘credible fear of persecution’ means that there is a significant possibility, taking into account the credibility of the statements made by the [noncitizen] in support of the alien’s claim and such other facts as are known to the officer, that the [noncitizen] could establish eligibility for asylum under section 208.” INA § 235(b)(1)(B)(v) (emphasis supplied).
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